Author: My safety thoughts

It is not uncommon for lawyers to get calls from clients after an accident seeking legal advice and asking questions about legal professional privilege (Privilege). Unfortunately, by the time the phone call is made the benefits of Privilege can be lost, and information created by the organisation – thinking it was protected – is no longer covered by Privilege.

Privilege in the context of health and safety is complicated. In reality, it is very difficult to establish Privilege in health and safety related communications because they are usually created for a multitude of reasons, not for seeking legal advice.

Without making any comment on the wisdom or efficacy of increasing penalties for breaches of health and safety legislation, it is nevertheless noteworthy that amendments to the Western Australian Occupational Safety and Health Act 1984 were proclaimed on 2 October 2018, and take effect today, 3 October 2018.

The result of the amendments is a significant increase in penalties for breaches of safety and health legislation in Western Australia. The most common penalties for employers, Level 2 and Level 3 have increased from $200,000 to $1.5 million and $400,000 to $2 million respectively. Level 4 penalties, breaches of the legislation in circumstances of gross negligence, have been increased from $500,000 to $2.7 million.

Breaches of health and safety legislation by an employee that caused the death of, or serious harm to, another person have increased from $20,000 to $80,000 for a first offence, and from $25,000 to $100,000 for a subsequent offence.

I am happy to announce my new book, Paper Safe: the triumph of bureaucracy in safety management is available.

It seems to me that at some point health and safety management has lost its way. Rather than being concerned about protecting workers and others from the hazards associated with business, health and safety management has devolved into a self-perpetuating industry which seems to have driven a wedge between management and the workforce. Health and safety management has become synonymous with seemingly trivial rules and burdensome, never ending paperwork.

Currently, RUOK day and Mates in Construction dominate health and safety social media (and quite rightly and importantly so). This is part of broader conversation in health and safety about mental health and well-being, with increasing calls to address mental health and well-being more explicitly in health and safety legislation.

But as the health and safety industry turns its mind to the very important issue of mental health in the workplace, perhaps we need to take a step back and reconsider the role that health and safety has in mental health – not necessarily improving it but contributing to psychological harm at work.

I have recently updated my website with a new article on due diligence. You can access the article HERE.

I will continue to publish links to my new articles through the My Safety Thoughts blog for the rest of the year, but moving forward I will be transitioning all my publishing to my website, www.waylandlegal.com.au

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There is concerning trajectory in the current conversation about regulating health and safety in Australia. The conversation is almost exclusively focused on the consequences of workplace accidents, specifically ongoing calls for increasing penalties and introducing a class of offence called “Industrial Manslaughter”.

At the risk of trying to close gates long after the horses have bolted, I would like to suggest some other conversations which do not simply involve more of the same.

In our recent book, Risk Conversations: The Law, Social Psychology and Risk, Dr Rob Long and I discussed a range of safety topics and our views on how things done in the name of safety had the effect of compromising safety. The discussion, which formed the basis of the book, also generated a 22 part video series that explores a wide range of topics in the area of risk.

All of the videos in the series are now available for free, and you can access then at the following link: